Understanding the Regulations in a University Setting EXPORT CONTROLS:

Presentation Overview “Export” – what that means and how it impacts what we do at UA The export control regulations and government agencies that affect UA research Fundamental research and how it can be nullified Red Flags – What to look for Processes and Procedures

It Takes a Village Sponsored Projects Services Contract & Research Support Program Human Resources Payroll Procurement IT Department Tech Launch Arizona Department Administration (Liaisons) Global Initiatives Shipping

Export - what is it and how can it occur? An export is the transfer of export controlled information, technical data, technology, commodities or software to a non-U.S. person (also called a “deemed export” if it occurs in the U.S.) Exports can occur in many ways: o o Mail, shipping o Face-to-Face o Visual inspection o Conferences o Hand-carried items and technical information (laptops, drawings, schematics) taken outside the U.S.

Export-what is it and how can it occur ? Affects research conducted both on campus and outside the U.S.: An export could occur if non-U.S. persons have access to certain data, software or equipment related to research projects on campus An export could occur if PI has a collaborator located outside the U.S. An export could occur if the PI conducts research abroad - includes taking /shipping equipment

What export regulations most likely affect your research projects? EAR: Export Administration Regulations; U.S. Department of Commerce – Bureau of Industry and Security ITAR: International Traffic in Arms Regulations; U.S. Department of State – Directorate of Defense Trade Controls OFAC: U.S. Department of Treasury – Office of Foreign Assets Control

EAR Covers dual use items Items regulated have a commercial and a military use Covers goods, test equipment, materials and the software and technology Each item has an export control classification number (ECCN)

EAR Commerce Control List (CCL) 0 = Nuclear materials, facilities and equipment (and miscellaneous items) 1 = Materials, Chemicals, Microorganisms and Toxins 2 = Materials Processing 3 = Electronics Design Development and Production 4 = Computers 5 = Telecommunications and Information Security 6 = Sensors and Lasers 7 = Navigation and Avionics 8 = Marine 9 = Aerospace and Propulsion

ITAR Covers items found on the United States Munitions List (USML) Includes most space related technologies although some items have been moved to the EAR Includes technical data related to defense articles and services Policy of denial for exports to certain countries See 22 CFR for up-to-date list

ITAR - United States Munitions List (USML) Categories I Firearms, Close Assault Weapons and Combat Shotguns IIGuns and Armament IIIAmmunition/Ordnance IV Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines VExplosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents VISurface Vessels of War and Special Naval Equipment VIIGround Vehicles VIIIAircraft and Related Articles IXMilitary Training Equipment and Training XPersonnel Protective Equipment XIMilitary Electronics XIIFire Control, Range Finder, Optical and Guidance and Control Equipment XIIIMaterials and Miscellaneous Articles XIVToxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment XVSpacecraft Systems and Related Articles XVINuclear Weapons Related Articles XVIIClassified Articles, Technical Data and Defense Services Not Otherwise Enumerated XVIIIDirected Energy Weapons XIX Gas Turbine Engines and Associated Equipment XXSubmersible Vessels and Related Articles XXIArticles, Technical Data, and Defense Services Not Otherwise Enumerated

OFAC Economic sanctions focus on end-user or country Providing “something of value” could require license Most highly sanctioned countries: Cuba, Iran, North Korea, Sudan, and Syria Iran has the most restrictions o Attending or speaking at a conference o Conducting research “Specially Designated Nationals List” – restricted entities and parties

What is a Restricted or Prohibited Party? U.S. Government agencies (Treasury, Commerce, State) have lists of individuals & entities both in the U.S. and abroad that have committed export violations or other offenses. Financial dealings or export transactions with Restricted or Prohibited parties are prohibited. Violations are subject to severe penalties and fines. Restricted Party Screenings (RPS) recommended depending on transaction Debarred Parties Drug Traffickers Specially Designated Nationals

Screening Restricted Parties UA subscribes to a web-based tool called Visual Compliance and has unlimited “seats” Who should be screened: o Sponsors o Vendors (FSO screens new vendors nightly) o DCCs o Project personnel UECP registers UA personnel for VC use

What’s not controlled? Information in the public domain Basic marketing descriptions Educational information (textbooks, etc.) Artistic or non-technical publications Information excluded under the Fundamental Research Exclusion (FRE)

Fundamental Research NSDD-189 “Fundamental Research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research... the results of which ordinarily are restricted for proprietary or national security reasons.”

Limits to FRE If subject to export controls or other prohibitions: Fundamental Research does NOT cover -- Exports of Hardware, Software, Technology Financial Dealings with Prohibited Parties or Entities Export Controlled activities – “technical assistance” Other Transactions Involving Sanctioned Countries or Prohibited Parties

The FRE can be lost if… Sponsor approval required prior to publication Publication of the results of the project restricted Other access and dissemination restrictions are in the agreement The review process starts at the proposal stage – look for “red flags”

Red Flags If the solicitation or agreement states the topic/project is: o Specially designed for military o Related to space technology o ITAR controlled o Proprietary in nature If the sponsor will provide technical data or equipment If the funding agency, sponsor, collaborator, subcontractor, or consultant is: o Military or space related (e.g., Army, ONR, AFRL, DARPA, NASA) o A non-U.S. entity o Related to an SBIR, STTR project o An industry defense contractor (e.g., Raytheon)

More Red Flags If the agreement has language that includes: The DFARS 7000 clause The DFARS 7012 clause Other than “Distribution A” Foreign National restrictions / notifications Restrictions on sanctioned country participation Export control language found in multiple areas of the agreement: o Compliance, Export/Import Controls, Miscellaneous, Confidentiality Overly restrictive export control language

Example of a Topic Subject to the ITAR

Example of a BAA Intended as Fundamental Research As of the date of publication of this BAA, the Government expects that program goals as described herein may be met by proposers intending to perform fundamental research. The Government does not anticipate applying publication restrictions of any kind to individual awards for fundamental research that may result from this BAA. Notwithstanding this statement of expectation, the Government is not prohibited from considering and selecting research proposals t hat, while perhaps not qualifying as fundamental research under the foregoing definition, still meet the BAA criteria for submissions. If proposals are selected for award that offer other a than fundamental research solution, the Government will either work with the proposer to modify the proposed statement of work to bring the research back into line with fundamental research or else the proposer will agree to restrictions in order to receive and award. Proposers should indicate in their proposal whether they believe the scope of the research clauses will be included in resultant awards for non-fundamental research to prescribe publication requirements and other restrictions, as appropriate.

DFAR (abridged) Aug 2013 (a) The Contractor shall not release to anyone outside the Contractor's organization any unclassified information, regardless of medium unless: 1) The Contracting Officer has given prior written approval; 2) The information is otherwise in the public domain before the date of release; or 3) The information results from or arises during the performance of a project that has been scoped and negotiated by the contracting activity with the contractor and research performer and determined in writing by the contracting officer to be fundamental research in accordance with NSDD189… and the USD memoranda on Fundamental Research, dated May 24, 2010, and on Contracted Fundamental Research, dated June 26, 2008….

DFAR Nov 2013 If in contract with DFARS 7000 clause, try to negotiate clauses out. Otherwise… o Project information will be considered Controlled Technical Information (CTI) o PI must adhere to specific safeguards for protection of data (extensive) o Reporting requirements exist If 7000 clause is 2013 version, no restrictions if Contracting Officer will put in writing UA effort is fundamental research

If there are red flags: UECP should be notified at the proposal stage if : Project will take place in an OFAC sanctioned country (Cuba, Iran, Syria, Sudan, North Korea) There is any indication the work will be ITAR controlled UECP should be notified at the award stage if: There are any red flags and “yes” answers on the Checklist Agreement and checklist should be forwarded to UECP for review – we need the entire contract, the SOW, and flow down clauses

UECP Review A TCP and/or export license may be required Agreement will not be signed until a license and/or TCP are in place and export training completed If TCP required, project should be marked as such within UAccess system Proposals/awards that contain ITAR data cannot be transferred via or uploaded into UAccess! Documents should be securely stored in a locked file cabinet.

Recap of Key Concerns Does the solicitation or agreement say that the topic or project is ITAR controlled? Are there publication restrictions (7000 clause) or foreign national restrictions? Will a foreign collaborator be involved in the project? Will the project be conducted outside the U.S.? Will equipment or materials be shipped outside the U.S.? Is the sponsor a DoD agency and/or military related? Is the sponsor from industry or a defense contractor? Will any export controlled data, materials, or equipment be provided by sponsor?

We Can’t Do it Without You It has been said that it takes a “village” to manage export controls, and the UECP cannot do this without your support and assistance. Working together we can lower the risk of possible export control violations, and become the standard for “best practices” in university export control programs.

UECP Contact Information Export Control Program general Kay Ellis, Director, Export Control Program Phone: Keith Corson, Export Control Analyst Phone: Shannon Woodman, Export Control Analyst Phone: Additional information can be found at 